22 U.S.C. § 4003 — Recommendations and rankings

Page 1459 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4003 foreign principal (as defined by section 611(b) of this title) or a lobbyist for a foreign entity (as defined in section 1602(6) of title 2) or receive in- come from a government of a foreign country. (Pub. L. 96–465, title I, § 602, Oct. 17, 1980, 94 Stat. 2095; Pub. L. 101–246, title I, § 142, Feb. 16, 1990, 104 Stat. 36; Pub. L. 104–65, § 12(c), Dec. 19, 1995, 109 Stat. 701.) Editorial Notes AMENDMENTS 1995—Subsec. (c). Pub. L. 104–65 inserted ‘‘or a lob- byist for a foreign entity (as defined in section 1602(6) of title 2)’’ before ‘‘or receive income’’. 1990—Subsec. (c). Pub. L. 101–246 added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104–65 effective Jan. 1, 1996, except as otherwise provided, see section 24 of Pub. L. 104–65, set out as an Effective Date note under section 1601 of Title 2, The Congress. § 4003. Recommendations and rankings (a) Recommendations and rankings by selec- tion boards shall be based upon records of the character, ability, conduct, quality of work, in- dustry, experience, dependability, usefulness, and general performance of members of the Service. Such records may include reports pre- pared by or on behalf of the Inspector General of the Department of State and the Foreign Serv- ice, performance evaluation reports of super- visors, records of commendations, reports of lan- guage test scores from the George P. Shultz Na- tional Foreign Affairs Training Center, awards, reprimands, and other disciplinary actions, and (with respect to members of the Senior Foreign Service) records of current and prospective as- signments. (b) Precepts for selection boards shall include a description of the needs of the Service for per- formance requirements, skills, and qualities, which are to be considered in recommendations for promotion. The precepts for selection boards responsible for recommending promotions into and within the Senior Foreign Service shall em- phasize performance which demonstrates the strong policy formulation capabilities, execu- tive leadership qualities, and highly developed functional and area expertise, which are re- quired for the Senior Foreign Service. The pre- cepts for selection boards shall include, whether the member of the Service or the member of the Senior Foreign Service, as the case may be, and when occupying positions for which the fol- lowing is, to any degree, an element of the mem- ber’s duties, has demonstrated— (1) a willingness and ability to explain United States policies in person and through the media; (2) experience serving at an international or- ganization, multilateral institution, or engag- ing in multinational negotiations; (3) willingness to serve in hardship posts overseas where applicable and across geo- graphically distinct regions; (4) experience advancing policies or devel- oping expertise that enhance the United States’ competitiveness with regard to critical and emerging technologies; (5) willingness to participate in appropriate and relevant professional development oppor- tunities offered by the Foreign Service Insti- tute or other educational institutions associ- ated with the Department; (6) willingness to enable and encourage sub- ordinates at various levels to avail themselves of appropriate and relevant professional devel- opment opportunities offered by the Foreign Service Institute or other educational institu- tions associated with the Department; (7) a willingness and ability to regularly and meaningfully engage with civil society and other local actors in country; (8) other demonstrated experience in public diplomacy; or (9) the ability to effectively manage and as- sess risk associated with the conduct of diplo- matic operations. (c)(1) A member of the Service or member of the Senior Foreign Service whose performance will be evaluated by a selection board may sub- mit to such selection board a gap memo in ad- vance of such evaluation. (2) Members of a selection board may not con- sider as negative the submission of a gap memo by a member described in paragraph (1) when evaluating the performance of such member. (3) In this subsection, the term ‘‘gap memo’’ means a written record, submitted to a selection board in a standard format established by the Director General of the Foreign Service, which indicates and explains a gap in the record of a member of the Service or member of the Senior Foreign Service whose performance will be eval- uated by such selection board, which gap is due to personal circumstances, including for health, family, or other reason as determined by the Di- rector General in consultation with the Com- mittee on Foreign Affairs of the House of Rep- resentatives and the Committee on Foreign Re- lations of the Senate. (Pub. L. 96–465, title I, § 603, Oct. 17, 1980, 94 Stat. 2095; Pub. L. 107–132, § 1(b), Jan. 16, 2002, 115 Stat. 2412; Pub. L. 108–458, title VII, § 7110(c), Dec. 17, 2004, 118 Stat. 3794; Pub. L. 117–81, div. E, title LIII, § 5325(a), Dec. 27, 2021, 135 Stat. 2370; Pub. L. 117–263, div. I, title XCIII, § 9302(k), Dec. 23, 2022, 136 Stat. 3889; Pub. L. 118–31, div. F, title LXII, § 6201, Dec. 22, 2023, 137 Stat. 971.) Editorial Notes AMENDMENTS 2023—Subsec. (b)(2) to (9). Pub. L. 118–31 added pars. (2) to (6) and redesignated former pars. (2) to (4) as (7) to (9), respectively. 2022—Subsec. (b). Pub. L. 117–263, § 9302(k)(1), inserted ‘‘and when occupying positions for which the following is, to any degree, an element of the member’s duties,’’ after ‘‘as the case may be,’’ in introductory provisions. Subsec. (b)(1). Pub. L. 117–263, § 9302(k)(2), substituted semicolon at end for ‘‘when occupying positions for which such willingness and ability is, to any degree, an element of the member’s duties, or’’. Subsec. (b)(2), (3). Pub. L. 117–263, § 9302(k)(3), (4), added pars. (2) and (3) and struck out former par. (2) which read as follows: ‘‘other experience in public di- plomacy.’’ Subsec. (b)(4). Pub. L. 117–263, § 9302(k)(5), which di- rected that par. (4) be added after par. (3) ‘‘as redesig- Page 1460 TITLE 22—FOREIGN RELATIONS AND INTERCOURSE § 4004 nated’’, was executed by adding par. (4) after par. (3) as added by Pub. L. 117–263, § 9302(k)(3), to reflect the prob- able intent of Congress. See above. 2021—Subsec. (c). Pub. L. 117–81 added subsec. (c). 2004—Subsec. (b). Pub. L. 108–458 inserted at end ‘‘The precepts for selection boards shall include, whether the member of the Service or the member of the Senior Foreign Service, as the case may be, has dem- onstrated—’’ and pars. (1) and (2). 2002—Subsec. (a). Pub. L. 107–132 substituted ‘‘George P. Shultz National Foreign Affairs Training Center’’ for ‘‘Foreign Service Institute’’. Statutory Notes and Related Subsidiaries CONSULTATION AND GUIDANCE Pub. L. 117–81, div. E, title LIII, § 5325(b), Dec. 27, 2021, 135 Stat. 2370, provided that: ‘‘(1) CONSULTATION.—Not later than 30 days after the date of the enactment of this Act [Dec. 27, 2021], the Di- rector General of the Foreign Service shall consult with the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Rela- tions of the Senate regarding the development of the gap memo under subsection (c) of section 603 of the Foreign Service Act of 1980 (22 U.S.C. 4003), as added by subsection (a) of this section. ‘‘(2) DEFINITION.—In this subsection, the term ‘gap memo’ has the meaning given such term in subsection (c) of section 603 of the Foreign Service Act of 1980 (22 U.S.C. 4003), as added by subsection (a) of this section.’’ § 4004. Records (a) The records described in section 4003(a) of this title shall be maintained in accordance with regulations prescribed by the Secretary. Except to the extent that they pertain to the receipt, disbursement, and accounting for public funds, such records shall be confidential and subject to inspection only by the President, the Secretary, such employees of the Government as may be authorized by law or assigned by the Secretary to work on such records, the legislative and ap- propriations committees of the Congress charged with considering legislation and appro- priations for the Service, and representatives duly authorized by such committees. Access to such records relating to a member of the Service shall be granted to such member, upon written request. (b) Notwithstanding subsection (a), any record of disciplinary action that includes a suspension of more than five days taken against a member of the Service, including any correction of that record under section 4137(b)(1) of this title, shall remain a part of the personnel records until the member is tenured as a career member of the Service or next promoted. (Pub. L. 96–465, title I, § 604, Oct. 17, 1980, 94 Stat. 2096; Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 327(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A–438.) Editorial Notes AMENDMENTS 1999—Pub. L. 106–113, in section catchline, substituted ‘‘Records’’ for ‘‘Confidentiality of records’’, designated existing provisions as subsec. (a), and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Pub. L. 106–113, div. B, § 1000(a)(7) [div. A, title III, § 327(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A–438, provided that: ‘‘The amendments made by this section [amend- ing this section] apply to all disciplinary actions initi- ated on or after the date of enactment of this Act [Nov. 29, 1999].’’ § 4005. Implementation of selection board rec- ommendations (a) Recommendations for promotion made by selection boards shall be submitted to the Sec- retary in rank order by salary class or in rank order by specialization within a salary class. The Secretary shall make promotions and, with respect to career appointments into or within the Senior Foreign Service, shall make rec- ommendations to the President for promotions, in accordance with the rankings of the selection boards. (b) Notwithstanding subsection (a), in special circumstances set forth by regulation, the Sec- retary may remove the name of an individual from the rank order list submitted by a selec- tion board or delay the promotion of an indi- vidual named in such a list. (Pub. L. 96–465, title I, § 605, Oct. 17, 1980, 94 Stat. 2096.) § 4006. Other bases for promoting or increasing pay (a) The Secretary may pursuant to a rec- ommendation of the Foreign Service Grievance Board, an equal employment opportunity ap- peals examiner, or the Special Counsel of the Merit Systems Protection Board, and shall pur- suant to a decision or order of the Merit Sys- tems Protection Board— (1) recommend to the President a promotion of a member of the Service under section 3942(a) of this title; (2) promote a member of the Service under section 3943 of this title; (3) grant performance pay to a member of the Senior Foreign Service under section 3965(c) of this title; or (4) grant a within-class salary increase under section 3966 of this title to a member of the Service who is assigned to a salary class in the Foreign Service Schedule. (b) In implementing subsection (a) of this sec- tion and in cases in which the Secretary has ex- ercised the authority of section 4005(b) of this title, the Secretary may, in special cir- cumstances set forth by regulation, make retro- active promotions, grant performance pay, make retroactive within-class salary increases, and recommend retroactive promotions by the President. (Pub. L. 96–465, title I, § 606, Oct. 17, 1980, 94 Stat. 2096.) § 4007. Retirement for expiration of time in class (a) Maximum time (1) The Secretary shall, by regulation, estab- lish maximum time in class limitations for— (A) career members of the Senior Foreign Service, (B) Foreign Service officers, and (C) other career members of the Service who are in such occupational categories as may be designated by the Secretary and who are as-